Ngwenyama v Mayelane wedding after customary wedding

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second wife is equally protected. Properly construe d s 7(6) is for the benefit
women in both monogamous and polygamous customary m arriages. This
much is obvious from the wording of s 2(3) which pr ovides:
‘If a person is a spouse in more than one customary marriage, all valid customary
marriages entered into before the commencements of this Act are for all purposes
recognised as marriages.’
It follows that whatever protection is afforded to women married according to
customary law equally applies to women in polygamou s marriages. I am
fortified in this view by the dictum in Hassam v Jacobs NO 15 where Nkabinde
J said:
‘By discriminating against women in polygynous Musl im marriages on the grounds of
religion, gender and marital status, the Act clearl y reinforces a pattern of stereotyping
and patriarchal practices that relegates women in t hese marriages to being unworthy
of protection. Needless to say, by so discriminatin g against those women, the
provisions in the Act conflict with the principle o f gender equality which the
Constitution strives to achieve. That cannot, and o ught not, be countenanced in a
society based on democratic values, social justice and fundamental human rights.
The purpose of the Act would clearly be frustrated rather than furthered if widows to
polygynous Muslim marriages were excluded from the benefits of the Act simply
because their marriages were contracted by virtue o f Muslim rites. The constitutional
goal of achieving substantive equality will not be fulfilled by that exclusion. These
women, as was the case with the applicant, often do not have any power over the
decisions by their husbands whether to marry a seco nd or a third wife.
It follows therefore that the exclusion of widows i n polygynous Muslim marriages from
the protection of the Act is constitutionally unacc eptable because it excludes them
simply on the prohibited grounds. In any event, it would be unjust to grant a widow in
a monogamous Muslim marriage the protection offered by the Act and to deny the
same protection to a widow or widows of a polygynou s Muslim marriage.’
15 Fn 2 supra paras 37-39.